Challenge Filed To South Whitehall Zoning Ordinance

January 09, 1989|by JOHN CLARK, The Morning Call

In ruling that a proposed single-family home cannot be used as a group home for mentally retarded individuals, the South Whitehall Township Zoning Hearing Board has opened the door for an Allentown attorney to challenge the constitutionality of the township's zoning ordinance.

Attorney James G. Kellar filed the challenge after the three-member board issued a ruling last month in favor of Charles A. and Marlene S. Souders, who had contended that group homes are not permitted in R-4 Residence Districts.

The proposed home had been planned for 284-290 Roosevelt St. by Bethlehem developer Thomas Morgan, the equitable owner of the lots. The site, adjacent to the Souders' property, is zoned R-4.

A hearing on the challenge is scheduled for Jan. 25.

According to testimony taken during the November hearing on the Souders' appeal, Morgan was to develop the home for lease to the Community Foundation for Human Development of Sellersville.

Morgan and representatives of the Foundation testified that eight mentally retarded individuals would live in the home as a single-family unit.

However, based on testimony elicited by township solicitor Blake Marles, it was revealed that the residents would receive various medical and intermediary care at the home. Marles contended that such use would qualify the proposed facility as a nursing home, as defined in the zoning ordinance.

Nursing homes are permitted only in Rural Holding and Rural Residential districts. These districts require minimum lot sizes of three acres.

According to Jeff Higgins, township planning analyst and former zoning officer, the ordinance defines anursing home as any building or part thereof that is used for "the lodging, boarding and nursing care on a 24-hour basis of four or more persons who, because of mental or physical incapacity, may be unable to provide for their needs and safety without the assistance of another person."

Kellar, however, argues that by not permitting the group home in the R-4 district the ordinance treats mentally retarded individuals as "second-class citizens."

In a legal submission to the board, Kellar stated that he believes the ordinance is unconstitutional in that:

- "There is no rational relationship between such restriction or prohibition and any valid state interest, . . . public health, safety, morals or general welfare.

Kellar further contends the ruling renders the ordinance unconstitutional because it results "in a prohibition of residences for mentally retarded individuals living as functional family units in Residence Districts throughout the township notwithstanding the official public policy of the United States and the Commonwealth of Pennsylvania in providing for and mandating the housing of mentally retarded individuals in residential houses in residence areas rather than with continuing the prior barbaric practice of herding and housing these unfortunate individuals in human warehouses."